N Sultan & Ors v Registrar of the Driving Standards Agency

The Appellant did not appear at the hearing of this appeal, having previously notified the Tribunal that he did not wish to appear.

The Appellant made an application for initial registration on 5 May 2011for the purposes of qualifying as an ADI. In his application he notified the Registrar that on 17 March 2000, he had pleaded guilty to an offence of conspiracy to defraud for which he was sentenced to a term of imprisonment of 18 months and that on 16 July 2010, following conviction for an offence of assault occasioning actual bodily harm, he had been sentenced to 8 months imprisonment suspended for 2 years with requirements that he undertake 180 hours unpaid work and pay compensation of £850.

As a result of this information the Registrar considered that the Appellant may not satisfy the requirement of being a fit and proper person and invited representations from the Appellant. In a letter dated 13 September 2011, the Appellant stated that the “simple explanation” for the first offence was that he had “got in with the wrong crowd” and had become embroiled in a credit card fraud in which he participated for six months. He had withdrawn from the fraud prior to the police investigation and had pleaded guilty at the first possible opportunity. He was released on licence having spent 7 months in custody after which he moved from Dewsbury to Wigan and became a taxi driver until June 2009 when he was charged with the second offence. This had occurred in the early hours of 1 February 2010 and concerned a racially motivated verbal and physical attack upon his brother by two men. The Appellant was accused of having gone to his brother’s rescue, attacking one of the men with a wheel brace. He had been found guilty by a jury although the fact that the jury took more than two hours to convict him meant that they had clearly needed “some convincing”. He questioned the reliability of the identification evidence upon which the prosecution relied; was critical of the absence of forensic evidence linking him to the crime; asserted that the investigating officer had received a reprimand for not properly investigating an alternative suspect and relied upon what he considered to be the “very lenient sentence” imposed upon him by the trial judge which indicated that the judge was “not quite convinced of the case” brought against the Appellant as there was “no real evidence”.

By a letter dated 12 October 2011, the Appellant was informed of the Registrar’s decision not to grant his application for initial registration.

Miss Jackson adopted the Registrar’s statement of case; whilst the Appellant accepted involvement in the conspiracy to defraud, he denied involvement in the assault occasioning actual bodily harm despite his conviction. The Registrar did not consider that he could go behind that conviction and that as a result, the Appellant could not satisfy him that he was a fit and proper person.

In his written submissions to this Tribunal, the Appellant questioned the Registrar’s right to treat the register as a public record by allowing members of the public to have access to it. He queried whether such conduct was a breach of the Data Protection Act. He considered that the Registrar was treating the register as “some form of private club” and that he was behaving like a “bouncer” in deciding who should become a member. The Appellant went on to ridicule the notion that it would be offensive to other ADI’s if the Registrar ignored the Appellant’s convictions. The Appellant described the Registrar’s arguments as “flawed due to his childish at best concerns” and went on: “he has no concern for the safety of general public but instead he highlights his concerns to be a piece of paper “the register of approved driving instructors””. The Appellant enquired as to “who put this moron in this position?” and went on “Instead this Muppet blabbers on about his reputation and a piece of paper “register of driving instructors”. I didn’t think anyone could be so shallow”. He wondered whether the Registrar would “belittle the courts” if they overturned his decision and whether he would resign. The Appellant did not think that anybody could “give a dam” (sic) about a register or the registrar’s good name”. The Appellant referred to the increasing numbers of lawyers taking “no win, no fee cases” and concluded “shall we proceed to Strasbourg?”. The Appellant attached to his appeal papers a bundle of Unpaid Work Time Recording Sheets from the West Yorkshire Probation Trust which recorded that the Appellant had completed the unpaid work aspect of his 2010 sentence in an exemplary fashion and stated that the judge who had sentenced him in 2010 obviously was not “high on drugs or in an exceptionally happy mood” when he passed a lenient sentence upon the Appellant. In the circumstances, the judge must have been assured that the Appellant was not a threat to the public and that the crime, whilst serious, was committed in defence and was not some random act of violence. In the judge’s educated opinion, such an offence was not going to happen again.

We are satisfied that the Registrar’s approach to the Appellant’s application was entirely proper. The Appellant’s conviction for assault occasioning actual bodily harm is too recent to be ignored. Neither is there any basis upon which we can go behind the conviction which is for a serious assault with a weapon late at night. Neither can we conclude that the sentence imposed was either lenient or indicative of the judge’s view that the Appellant was not a threat to the public. A suspended sentence cannot be categorised as lenient and no doubt, the judge was following the well established guidelines of the Sentencing Guidelines Council, taking account of the hardship that would be suffered by his family if the Appellant were to be imprisoned. In the circumstances, we are not satisfied that the Appellant is a fit and proper person to be an ADI and his appeal is dismissed.

The Appellant’s name was first entered onto the register in November 2003 at which stage, he had a number of previous convictions, the last being in January 1997 when the Appellant was sentenced to nine months imprisonment on two counts of theft. On 27 June 2007, the Appellant was convicted of an offence of assault occasioning actual bodily harm and was imprisoned for eight months. On 16 November 2007, the Appellant applied for an extension of his registration. In his application he declared the 2007 conviction and as a result, the Appellant’s name was removed from the register, the Registrar not being satisfied that the Appellant was a fit and proper person to be a driving instructor. An appeal against that decision was dismissed by this Tribunal on 5 June 2008. During the course of the appeal hearing, Mrs Mather, who appeared on behalf of the Registrar indicated that the Registrar would most likely consider a fresh application from the Appellant at some stage between four and seven years from the date of conviction.

On 1 September 2011, the Appellant made an application for initial registration enclosing an enhanced disclosure document detailing various convictions between 1978 and 2007. In the covering letter to the application, the Appellant referred to the Tribunal decision stating “I was told that I could go back on the register after time spent, and would need to re-qualify as an ADI. So formerly (sic) start the process again. I would like to point out that as an ADI I never had any complaints from students, and took pride in my work”.

Having considered the enhanced disclosure and in light of a conviction for causing grievous bodily harm with intent in 1987 for which the Appellant was sentenced to four years imprisonment, the theft convictions mentioned above and the conviction in 2007, the Registrar notified the Appellant that he was considering refusal of his application by reason of him not being a fit and proper person. He was invited to make representations. The Appellant responded by setting out the circumstances of the highlighted convictions: the offence of causing grievous bodily harm with intent to do so was the result of a man punching the Appellant’s wife in the face whilst she was holding their 18 month old son. The Appellant “saw red” and now accepts that he should not have acted in the way that he did; the convictions for theft arose as a result of him being in the company of a known burglar in the vicinity of a caravan site which had been burgled. He denied any wrongdoing and was just in the wrong place at the wrong time and in respect of the assault occasioning actual bodily harm offence in 2007, this was the result of a protracted course of conduct by the complainant in that case who had been harassing and “stalking” his teenage daughter. The police stated that they were powerless to intervene. Then the complainant threatened the Appellant’s son and as a result, the Appellant punched the complainant. Whilst the Appellant was in custody, the Appellant’s wife sold their home and moved out of the village in order to put some distance between the family and the complainant. The Appellant accepted that he had made some bad decisions but he had now turned his life around. He had never received a complaint from any of his pupils and was relying upon the statement made by Mrs Mather in making the application.

By a letter dated 12 October 2011, the Appellant was informed that his application had been refused.

At the hearing of this appeal, the Appellant appeared in person. Miss Jackson adopted the Registrar’s case and stated that the three convictions relied upon by the Registrar were for serious offences resulting in three periods of imprisonment. The Registrar could not go behind the facts of the convictions and as a result the Appellant could not be considered to be a fit and proper person.

In his evidence to the Tribunal, the Appellant stated that he is a 50 year old father of six children with a range in ages of 30 to 16; none of them have been in trouble. He has worked for virtually all of his adult life and when in prison, he was not idle, completing City and Guild courses in welding and motor mechanics. He repeated the background circumstances of his convictions and submitted that the provisions of the Rehabilitation of Offenders Act were meant for people like him. He had made some bad decisions and had paid for them. Prior to his 2007 conviction he had been working as an ADI and had spent four years in the Sea Cadet Corps helping children. As an ADI he had assisted the probation service in providing “cut price” driving lessons to disaffected young offenders. He considered that he had provided a good service to the community. More importantly, in 2009 he was given a chance by the North Road Pharmacy in Great Clacton and was employed as a pharmaceutical delivery driver for the local chemist. He works 30 hours a week earning the minimum wage, delivering prescription drugs to the disabled, elderly and terminally ill. It is a position of trust and he has key entry to all of the homes where he delivers. He described the job as rewarding and fulfilling. He keeps an eye out for his customers and notifies the relevant authorities if he has cause for concern.

The Appellant produced a number of letters and testimonials: Adil Kureemun, the director of North Road Pharmacy, confirmed that the Appellant was employed by the pharmacy despite his CRB record. Following an interview, it was decided that the Appellant should be given a second chance to have a “proper job”. The Appellant deals with restricted drugs and is in contact with elderly patients. There have been no complaints about his conduct and he is considered to be a trust worthy person. The feedback from customers has been “very good” with references made to his considerate nature and his willingness to help. Sandra Smith, the pharmacy manager, described the Appellant in her letter as cheerful and helpful; he is a trusted friendly face to their regular customers and is highly spoken of due to his conscientious attitude, often going the “extra mile” to ensure that the needs of customers are met. The Appellant’s job involved a high degree of responsibility and trust and he is a highly valued and regarded member of staff.

The Appellant also produced letters from Mr and Mrs Harris and Mr Walters who are customers of the pharmacy. Their letters confirm the contents of the letters from those who manage the pharmacy.

The Appellant concluded that whilst his previous convictions make sad reading, he is not an evil person and can be trusted. All he wants is to have his ADI badge back and to continue with his work in the community. The Appellant was asked why he had not produced any of the evidence that he had put before the Tribunal or indeed why he did not make any reference to his employment when making his application to the Registrar. He stated that he is not very good with the written word and had in any event assumed that the Registrar would refuse his application and that it would only be properly considered on appeal.

The Appellant’s description of his advanced disclosure record is correct but we note that twenty five years has passed since his conviction for causing grevious bodily harm with intent, fifteen years has passed since his theft convictions and four years have now passed since the conviction for assault occasioning actual bodily harm. Whilst in the normal course of events, the combination of those serious offences would preclude a finding that someone is a fit and proper person, the length of time which has passed since the commission of those offences when taken together with his own evidence warrants a different approach. We found the Appellant’s evidence to be compelling and reliable. The letters and testimonials that he produced to the Tribunal constitute strong evidence that the Appellant should be viewed as a trustworthy and reliable individual who can now be considered to be a fit and proper person. It is a pity that the Appellant did not produce that evidence when making his application to the Registrar, thus avoiding the possibility of an expensive appeal. In the circumstances, we are satisfied that the Appellant is a fit and proper person to be an ADI and his appeal is allowed.

D2011/316 Lakbir Singh Purewal

The Appellant did not attend the hearing of his appeal but requested that we hear and determine his appeal in his absence.

On 8 August 2011, the Registrar received the Appellant’s application for initial registration. He disclosed criminal convictions which caused the Registrar to have concerns. He was informed that the Registrar was considering the refusal of his application and he was invited to make representations, which he did on 18 September 2011. The convictions and the Appellant’s representations in relation to them are as follows :

By a letter dated 12 October 2011, the Appellant was notified of the Registrar’s decision to refuse his application upon the basis that he was not a fit and proper person to have his name entered onto the register.

Miss Jackson relied on the Registrar’s statement of case. In addition to the convictions above, an internet search by a member of the Registrar’s staff had revealed an article entitled “Grow up, drinker told after attack on a policeman”. This article related to the Appellant’s most recent conviction in May 2011 concerning an assault on an off duty police officer which took place in October 2010. The Appellant had been drinking with others in a vehicle when the police officer walked past. He was verbally abused and a plastic cup of alcohol was thrown at him. The Appellant then got out of the car and pushed the officer and punched him in the face. The Appellant was described by his counsel at the sentencing hearing as being so drunk that he could not remember the incident. The Appellant was sentenced to sixteen weeks imprisonment suspended for one year with requirements that he undertake 120 hours unpaid work and attend a rehabilitation course. The Registrar concluded that the Appellant had a history of drink related motoring and violent convictions and that the most recent conviction resulting in a suspended sentence had resulted in a rehabilitation course aimed at people who drink and who are violent. The Appellant could not in those circumstances be considered to be a fit and proper person.

In his grounds of appeal, the Appellant stated that he was “not happy” about the Registrar’s decision as driving instruction was his chosen career. He had borrowed £2,995 from his parents for the fees and by securing a full time job with Red Driving School, he had secured his family’s future. The Registrar’s decision meant that the fees paid to Red would not be refunded, although he could re-apply to train in the future. He asked for guidance as to when he might be able to re-apply if his appeal was unsuccessful.

We are in no doubt that by reason of the Appellant’s previous drink related convictions that he is not a fit and proper person to be a driving instructor and we are not in a position to give guidance as to when he might be considered to be a fit and proper person. This is a bad case involving serious drink driving convictions as well as drink related offences of violence. This appeal is dismissed.

Her Hon. Judge J Beech